Official Report of the Grand Committee on the

Crime (International Co-operation) Bill [HL]

(Fifth Day) Monday, 3rd February 2003.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Lyell) in the Chair.]

Clause 83 [Foreign surveillance operations]:

Baroness Anelay of St Johns moved Amendment No. 152:

Page 55, line 35, at end insert

"( ) A foreign police or customs officer carrying out relevant surveillance under this section is a "public authority" for the purposes of section 6 of the Human Rights Act 1998 (c. 42) (public authorities).
( ) Nothing in this section shall have the effect of disapplying, or removing any civil liability under, any provision of the Human Rights Act 1998 in relation to a foreign police or customs officer."

The noble Baroness said: We are on the home straight today. The question that goes to the core of the amendment is whether or not foreign officers carrying out hot surveillance will, like UK officers, be classified as "public authorities" subject to the Human Rights Act and therefore have to act compatibly with the ECHR. If not, will they be subject only to the conditions laid down by the Secretary of State by order, as we debated earlier?

Section 6 of the Human Rights Act defines the term "public authority" as including,

"any person certain of whose functions are functions of a public nature".

Will foreign "hot surveillance" officers fit into that definition, which was drafted deliberately as a catch-all provision by the Government so that they did not have to list every qualifying authority at length in the Act? Will there need to be a provision in each and every Act as to whether or not a particular person is subject to these conditions?

Where a person's ECHR rights are breached by a UK public authority, there is a right to relief or remedy, including damages, under Section 8 of the Human Rights Act. How will that be applied in respect of foreign officers conducting hot surveillance? I beg to move.

The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): The amendment seeks to ensure that foreign police and Customs officers undertaking cross-border surveillance fall under the same obligations of the Human Rights Act 1998 as those

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placed on UK police and Customs officers. It also seeks to reinforce their responsibility for any liability they may incur during any surveillance operation.

The Human Rights Act established within UK law our obligations as a signatory to the ECHR. The obligations in the Human Rights Act apply to public authorities. In our view, foreign officers acting under Section 76A will be public authorities under the Human Rights Act. That provision will be triggered when their presence has been duly notified.

Under the Human Rights Act, a public authority is any person who has at least some functions of a public nature. Policing in the UK is obviously the responsibility of UK police officers, but under these clauses we are effectively delegating, albeit for a fixed short period of time and subject to specific conditions, that role to foreign officers where as a matter of practicality UK officers cannot immediately take over the surveillance operation. That is why we take the view that foreign officers acting under Section 76A will be public authorities under the Human Rights Act and that the amendment is therefore unnecessary.

The second amendment seeks to ensure that nothing in this clause would have the effect of disapplying any provision of the Human Rights Act 1998 in relation to a foreign police or Customs officer so acting. I am happy to reassure the Committee that the amendment is not necessary. There is nothing in Section 76A that could disapply or remove liability under the Human Rights Act from anyone. In addition I can confirm that in Schedule 4 to the Bill we are amending the Regulation of Investigatory Powers Act (RIPA) to provide that the RIPA tribunal can deal with challenges to surveillance by foreign officers under Section 76A. For those reasons, I hope that I have satisfied the noble Baroness and that she will withdraw her probing amendments.

Baroness Anelay of St Johns: The Minister is right; these are probing amendments. I may have misunderstood the first part of his answer. Will the officers be public authorities once they have given notice that they are coming here? In other words, will there be a hiatus where they could be on our soil, have not quite made the notification and therefore will not be public authorities? It may be that I misheard the opening remarks of the Minister, but I should be grateful if he would clarify the situation.

Lord Filkin: They are public authorities when they are acting strictly in accordance with Section 76A and within the provisions of the Bill as we have discussed. That is triggered by the absolute obligation on them to notify their presence as soon as they step foot on UK soil. It is that process of notificationwhich gives the responsible authorities the opportunity to say continue or nothat turns them into public authorities. Clearly in most cases we expect there will have been prior notification of their intention to come, and the processes will have been put into place before they step foot on UK soil. Nevertheless, even if that

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has been done, they still have a duty to notify immediately they place foot on UK soil. It is then that they are acting as public authorities.

Lord Renton: Before my noble friend Lady Anelay withdraws her amendment, perhaps I may ask the noble Lord, Lord Filkin, for clarification on the future of the Human Rights Act 1998, which we all remember well. We are told that because of the help that it gives to unlawful asylum seekers, something will have to be done about the Human Rights Act. I assume that it will not be repealed but will be amended so as to remove the rights of ill-intentioned asylum seekers. It will not go further than that in any amendment. Can the noble Lord confirm that?

Lord Filkin: I am reluctant to be drawn on that issue as it is not before us in the Bill nor even in more general terms. If I am pressed to go a little furtherI referred to this in answer to a Question in the Chamberthe Prime Minister was asked on the "Breakfast with Frost" programme what would happen if the measures taken did not appear to work. As we would expect of a Prime Minister, he signalled that we would consider anything necessary to ensure that we are able to deal with asylum and, in the context in which he spoke, terrorism. I do not believe that that is a matter for this Committee at present. However, I would be happy to write to the noble Lord, Lord Renton, and give him a fuller answer, if that would be helpful.

Baroness Anelay of St Johns: I am sorry to be tedious but I do not think that I put my first question as clearly as I might have. In his helpful response the Minister stated that the provision whereby such officers become public authorities is triggered by the obligation to notify. I appreciate that the obligation exists but when do the officers become public authoritiespost-notification or pre-notification? I know that the obligation exists throughout, but do they become public authorities only after they have gone through the process of notification?

Lord Filkin: I shall choose my words carefully. If there is any need, I shall be delighted to write to the noble Baroness, Lady Anelay, as this seems to be a slight case of angels on the head of a pin. It is important that we are clear. I am advised that foreign officers will be public authorities in the few minutes between entering the UK and immediately contacting UK authorities as they will be acting under Section 76A. I am sure that that is a response that the noble Baroness, Lady Anelay, will want to studyas shall I to see whether it closes all the gaps and answers all the questions. If it does not, it will be my pleasure to write to her.

Baroness Anelay of St Johns: I am grateful to the Minister. He is right; I shall have to carefully consider the matter. Naturally, one would hope that in the best possible world it would be only a few minutes betwixt the time that these people step foot on UK soil and make the notification. However, the legal world is littered with cases where people do not do what one

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would expect, sometimes for good reason. Therefore, I shall need to carefully consider the matter to ensure that we have covered all the right options. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 153:

Page 55, leave out lines 36 and 37.

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 154. Both amendments are also tabled by the noble Lord, Lord Dholakia.

They were tabled simply to ask the Minister for an explanation about the period of five hours. I notice that I have no support from the Liberal Democrat Benches at present, but perhaps that means that they do not need to add their own voices because they fully support every word they expect me to say. I am grateful to my noble friend Lord Carlisle for pointing that out to me.

I have chosen to highlight some of the problems with the provision by tabling two amendments that are completely and intentionally contradictory. One can get away with that in Grand Committee, but I would not dare do it on the Floor of the House. Amendment No. 153 would remove the time limit altogether, which is something that I would never want to do if the provision had to go ahead. Amendment No. 154 would reduce the limit to one hour.

I remind the Minister of a debate we had last Wednesday, when I asked a question about where the border lies and from when the five hours will start to run. I am clear in my mind as to where the border of the United Kingdom runs, but his answer was that the five hours begins only when someone steps on UK soil, not when they enter UK territorial authorities. In practice, they might get five hours plus. In that five hours, they may do some surveillance on the people they are following.

When do we know that the five hours have started? That is still the question. I do not think that the Minister fully covered that last week. If we do not have notice given in advance that someone is travelling, there might be the temptation for the foreign officers to stretch that five hours in what they would see as exceptional circumstances, perhaps by saying that they arrived a little later than they actually did. What is there to protect us against that?

Why five hours? The Minister said that the magic number was plucked out of the air because it is in the Schengen Convention. The question then has to be whether Parliament can change what is in the Schengen Convention that allows for the five hours. Are we powerless to do so?

At the other end of the scale, having asked how we shall know when the period starts, how will we know when the five hours are up? We might know if we were in authority, because I hope that we would know when the five hours started. However, if we are members of the publicwe must recall that members of the public

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may find themselves accused of assaulting such peoplewe need to know when the five hours are up. Who will keep the time?

Does the surveillance have to stop unless it is continued by the UK authorities? What happens if the foreign officers continue the surveillance without authority? Do they lose the protection against civil liability afforded to them under the Bill? With regard to the last question, I hope that the Minister will be able to answer with a resounding, "Yes, they would lose that protection". I beg to move.